Thursday, February 03, 2011

the collective voice of creation

This morning in Ottawa an unprecedented coalition of Canadian cultural organizations released a joint statement calling for targeted amendments to Bill C-32, the federal government's Copyright Modernization Act (currently at a special legislative committee after passing Second Reading).

The statement contains 9 warnings about Bill C-32 as it is currently written:
C-32 may be toxic to Canada's digital economy;

C-32 can destroy markets for artistic and cultural works;

C-32 expropriates without compensation;

C-32 streams revenues away from creators;

C-32 expropriates music owners' rights;

C-32 rewards infringement;

C-32 turns copyright upside-down;

C-32 makes Canada a safe haven for pirates; and

C-32 thwarts new business models

Full details can be found at this website; but for me what's even more important than the statement itself is what it represents.

Canada's many overburdened cultural associations and organizations have worked incredibly hard on producing a statement that represents the entire sector as broadly as is possible in a very complex and often misunderstood policy discussion. The statement is endorsed by almost 90 separate organizations representing in total over 600,000 working Canadian artists and professional cultural creators.

So often in the copyright debate, you will hear free culture activists claiming to speak for Canada's creators. Undoubtedly, there are many individual voices in Canada's cultural sector, and they do not always agree. In fact, not always agreeing might be considered a prerequisite for the creative life. That's why a joint statement like this, incorporating the collective opinion of over half a million Canadian creative professionals is so remarkable.

Can it be disputed that this is the voice of Canada's creators? I don't think so.

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Darryl said...

Indeed John, most of those bullets are bang on.

C-32 may be toxic to Canada's digital economy;

The DRM provisions will have a tendency to lock consumers into certain platforms, this will give significant control to a small number of players and make the cost of entry to new competitors very high.

C-32 expropriates without compensation;

The DRM provisions expropriate real physical property rights of the individual and gives them to the distributor. A real world analogy is Apples current practice of replacing Phillips screws on iPhones with ones requiring proprietary drivers, thereby depriving the owner access to their own property. DRM legislation would make the removal of these screws by the property owner illegal.

C-32 streams revenues away from creators;

And into the hands of distributors like Apple and Amazon. As these vertical markets take hold, without any legal way of going around them artists will be forced to accept unfair terms of the distributors in order to have access to customers who purchased those platforms.

C-32 expropriates music owners' rights;

Both the owners of the copyright who will be forced to accept unreasonable terms, and the owners of copies who will not be allowed to have fair use of the product they purchased.

C-32 turns copyright upside-down;

Rather than being a way to balance the rights of users and creators, the rights of both these groups are being usurped by new rights for technology providers.

C-32 makes Canada a safe haven for pirates;

Such as Bell, Rogers, Microsoft and Apple

C-32 thwarts new business models.

Many open source business models will become nonviable in the face of the impenetrable vertical markets this legislation will produce.

I am so glad to see these cultural organizations finally realize the dangers presented by this bill. Perhaps now the copyright wars really can end. I look forward to reading this statement to see how they finally came to this common sense conclusion.

Sandy Crawley said...


As one who has been working within this coalition for many months I really appreciate your comment and support for the broad points of our analysis. But your words "...have finally realized the dangers of this bill..." raised my eyebrows a touch. Many of the organizations who signed the statement released today have been pointing out these issues since last June when the bill was tabled. The likes of Professor Geist has misdirected many people by implying that we in the cultural sector are relying on DRMs (we're not, though they are a partial solution for some sectors of the industry). You will note that certain players have not signed because they are satisfied with the provisions that you and others who comment here tend to abhor.Some have made a calculation that they can operate within their sphere without showing support for the broader community on which they depend for creative talent.

When you drill down into the bill, though, there are other clauses that do considerable harm to existing markets and seriously imperil potential new development.
I'll be interested to hear further what you think once you have digested the full document.

John said...


You are a very generous soul.

I wouldn't hold out much hope for much more from Darryl than what he's provided consistently here for years now, which is a relentless and none too original attack on professional creation. It may be the Internet's famous inability to translate tone getting in the way, but if you read between the lines of Darryl's (aka The Private Infringer, aka Captain Hook) sarcasm you will find nothing deeper than the standard copyleft talking points.

You will notice he has taken the bullet points from your coalition's document and attached his own interpretation to them. This is known, generously, as "appropriation art" and is the most tired rhetorical trick in the copyleft bag.

Thanks for the joint statement, sir.

Pieter Hulshoff said...


Could you name me one work that did not get pirated thanks to its DRM? If not, could you kindly explain to me why we need TPM/DRM provisions in C-32 other than the minimum obligated by the international treaties? Also, can you give me one example of where DRM actually successfully contributed to anything?

Darryl said...

Strunk&White (aka John), while I admit there is a sarcastic element to my post, the points I make are genuine and sincere. The real danger to creators come from the gated digital ecosystems that DRM will produce. Indeed, already is being produced even without DRM legislation. It is a pity that so many creators and creator groups cannot see what lies just ahead on this road we travel.

I admit, I tend to view this issue from a user perspective, but I can also see the effect upon creators, and there is much in common. The negative consequences identified in this document are small to non-existent. Especially in comparison to the consequences of DRM, and there is not a single word mentioned on that.

DRM will indeed increase the value of cultural industries, but the revenue generated will be primarily going to distributors, while both creators and consumers bare the cost.

To see how this will play out, one only has to look at the current usage based billing issue. The big ISPs are trying to use their monopoly on access to customers to control the market and soak both independent ISPs and content producers. DRM is nothing if not a mechanism to create distribution monopolies. Creators, like consumers, should be seeking protection from DRM not for it. Sadly this document is completely silent on the issue.

John said...


I appreciate the reference to The Elements of Style, and am flattered that you think of me that way. One of my favorite books. I escpecially like the illustrated edition.

I'm guessing DRM doesn't get play in the statement because there was not general agreement on it one way or another, which is unsurprising given such a large group.

My own thoughts on DRM are well documented in this blog. As a (primarily independent) creator I worry less about the potential piracy of my work than I do about the potential for crippling obscurity, so when I released my own novel as a PDF free download, I did not attach any DRM (beyond what may already exist at adobe). I'm quite sure my book was pirated, and I DO resent that fact, but accept as well that there are an awful lot of jerks out there who don't respect the right of a creator to control his work.

BTW, I'm unconvinced about the great advantage of my sharing experiment as the book was also available for sale during that time period and the sales blip was not significant or lasting. That's not a complaint; just an observation. I recognize and respect my place in the CanLit market.

Of course, just because I made a personal choice, once, to forgo DRM, does not mean I think my choice should be imposed on other individual creators and their publishing partners. I see little real evidence of gated digital ecosystems in my line of work -- for instance, I am just finishing reading True Grit on my Kobo e-reader (and/or iPhone or iPad, or laptiop... so much freedom to move through platforms). True Grit is also available to Kindle customers and I would guess Sony e-reader customers as well, so I'm not sure anyone is being "gated" out of enjoying that excellent novel.

I personally think all DRM systems will be forced to become extremely uninterruptive and worth the asking price for the material, or else the content provider will go out of business from lack of customers. Those providers who choose to go DRM-free will have a sales advantage among the free culture crowd, but will also pay a measurable price in lost sales due to piracy.

To answer Pieter, I'll say what I've always said (does no-one actually READ this blog?) -- DRM doesn't have to be unbreakable to help in piracy deterence and, more importantly, market definition. It merely has to be reasonably protected by law. What locks are unbreakable? Does the breakability of your bike lock mean it shouldn't be protected by law?

And, take note, I am talking about locks on content. If you are complaining about some other kind of lock that concerns you (for instance, the wrong kind of screws on your iPhone... yawn, zzzz), you need to do the work to delineate your views from what is now a general attack on the individual rights of creators.

Rest assured, the collective might of the various industry associations will continue to work for fair pay and treatment for creators from the large corporate intermediaries you find so repellent.

Me, I look at them as partners, but I'm a pragmatist.

I have the same pragmatic approach to the feared cost increases from UBB. You can't fight a pricing battle by removing basic rights from the large ISPs who built and continue to service the infrastructure. Leave everyone's rights intact, have a real conversation about the costs and come to a negotiated agreement.

There simply is no free lunch.

That said -- you can see much if not all of The Elements of Style for free online at It's entertaining and I think Darryl might find it helpful for writing commentary with much more originality to it.

Darryl said...

"I see little real evidence of gated digital ecosystems in my line of work ... so I'm not sure anyone is being "gated" out of enjoying that excellent novel."

Ho ho, that is priceless.

It's because you don't seem to realize what side of the "gate" you are actually standing on. It's not kindle customers that are being denied access to these works as much as it is the producers of these works who are being denied access to the kindle customers, unless of course they agree to kindle's terms. With DRM you are no longer able to directly deal with the public as has long been the promise of the Internet. The distributors, in the form of technology/DRM vendors are inserting themselves into the transaction and taking their pound of flesh in return.

It is true I guess that sheep are never aware when they are being led to the slaughter, so I guess I shouldn't really be surprised.

John said...

Funny, I don't remember having to agree to Kindle's terms to release my own book electronically. Any Kindle customer with a computer and access to the internet (my guess.. all Kindle customers) could quite easily have gotten my free book and read it. I heard from at least one who did.

Furthermore, given the evidence I've provided (True Grit), Kobo customers are not denied a book because of Kindle terms, and vice versa. And neither was the sheepish author denied access to either market.

In fact, I'd be willing to bet Charles Portis (True Grit's 77 year-old author) and his publishers have retained rights to do what they like with the book outside the Kindle and Kobo universes, thereby ensuring a rich vein of future markets as well.

Some sheep. Baaaaaaa!

BTW -- thank goodness for extended copyright terms. Charles Portis is surely now enjoying the fruits of renewed interest in his 1968 novel.

I'll bet he made a tidy sum from the Coen Brothers' re-adaptation of True Grit. And may his estate long profit from the continued DVD and streaming sales of that movie long after Mr. Portis has fought his own last gunfight.

Y'all should read the novel. It's about a determined 12 year-old girl who refuses to allow a dirty scoundrel to get away with a crime despite a general atmosphere of lawlessness around her. It's funny and gripping and provides some valuable moral instruction for our own times.

Sandy Crawley said...

I guess you're right right John, Darryl (and I assume his other brother, Darryl) seems to think the ONLY issue of import in C-32 is DRM/TPMs. He also seems to think their elimination is they single key to vast riches for creators. I'm trying to decide between ascribing singlemidedness or simplemindedness as the trait to watch for in further communications.

Darryl said...

"Funny, I don't remember having to agree to Kindle's terms to release my own book electronically."

Yes, well. I think Apple is more the sign of things to come.

"BTW -- thank goodness for extended copyright terms. Charles Portis is surely now enjoying the fruits of renewed interest in his 1968 novel."

I know, but why do we stop there? Just imaging how much the heirs of Shakespeare and Wordsworth would enjoy the fruits of the continued interest in their works. Honestly. I mean why is copyright only LIFE+50 when the works themselves last forever?

Darryl said...

No Sandy, I don't "think [DRM] elimination is the single key to vast riches for creators".

I think there is much that will have to change, but most of those changes need to happen outside of copyright.

I'm sorry but most of what this document complains about I do not see as being a significant burden to creators. And yes, DRM I believe is the single biggest fault within this bill. There are many other changes I would dearly love to see in copyright law that this bill does not even touch upon, and there are many other faults I see within this bill that I do not touch upon, simply because they pale next to the DRM provisions.

Call me simple or small minded if you like. I have similar opinion of people who criticize the small gains in fair dealing which even if fully implemented would not come close to the 'fair use' provisions enjoyed by our southern neighbours in one of the biggest cultural markets in the world.

People complain about these fair dealing provisions, (including Americans) but not a word is spoken about Americans' much broader fair use provisions. In that context I don't understand how you can expect people to take your arguments seriously.

John said...

Yes, Darryl, how dare the evil empire Apple expect a cut from sales after providing Amazon with millions of customers?

Why that's... that's.... capitalism!

Creators generously allowed for term limits on copyright long ago, but if you think we should renegotiate, bring it up to the committee.

Crockett said...

Hello John, I've been out of the loop a bit as I am traveling in Kenya and thus have not had the opportunity to read this document. It sounds like there are some common concerns between creators and consumers.

I am not overly surprised though on your position on UBB. I have discerned over our conversations these past years that you seem hold a high esteem for the reasonableness of corporations to deal fairly. I on the other hand hold a more skeptical view, I suppose reality is some combination of the two.

In relation to UBB you say that there should be discussions between the parties to come to an agreement on costs and charges. The difficulty in that is the scarcity of the choices. In an effective duopoly that coludes on pricing rather than competes, the consumer has no leverage to affect the price offering of the provider. Now you may say that Internet acres is not a beseeched and a option of the consumer to apply preassure is to not purchase at all . This is an option but access is moving from a category of luxury to necessity and thus different rules need to come into play.

In the recent decision, the CRTC agreed to let the Duopoly to effectively nueter their significant competition , thus letting them continuing to set prices that do not reflect their costs but rather increases profits. This is all fine and good for some retail sectors but, as many have stood up and spoken, does not meet the needs of the people in this situation. Times, technologies and markets are evolving, regulatory practices need to track along.

Crockett said...

Blogging on a cell phone has it's textual challenges it seems. A correction from my previous post:

"Now you may say that Internet acres is not a beseeched and a option of the consumer to apply preassure is to not purchase at all ."

Should have read: "Now you may say that Internet access is not a nessesity and an option of the consumer to apply preassure is to not purchase at all."

Some further observations, the day Netflix launched in Canada ALL the ISPs who also had competing vertical market products such as pay-per-view lowered the bandwidth caps on their internet plans while keeping the price ranges the same. They also excluded their own video streaming services that use the same Internet bandwidth to be exempt from those caps. This is clearly anti-competitive and is a stark example of why their needs to be regulation of these businesses whom are not just for profit companies but also service providers.

The argument that they have paid to build and maintain the networks and thus use them as they see fit forgets those networks were built with funds from the very people they are taking advantage of now. As well as built from funds from government through subsides and incentives that are funded through public income taxation.

There I'd no free lunch for big business either.

Pieter Hulshoff said...

Dear John,

Those providers who choose to go DRM-free will have a sales advantage among the free culture crowd, but will also pay a measurable price in lost sales due to piracy.

To answer Pieter, I'll say what I've always said (does no-one actually READ this blog?) -- DRM doesn't have to be unbreakable to help in piracy deterence and, more importantly, market definition. It merely has to be reasonably protected by law. What locks are unbreakable? Does the breakability of your bike lock mean it shouldn't be protected by law?

Actually, DRM so far seems to increase copyright infringement rather than deter it, so I disagree with your statements to that regard, but it's up to the right holder to use or not use DRM.

Locks however should never be protected by law. Of course the theft of the bike should be illegal even though the lock is breakable, but the bypassing of bike locks for legal purposes (like breaking the lock on your own bike if you lose the key) should not, and neither should bypassing TPMs on digital content for legal purposes be made illegal. As long as I act within the law of copyright, I should be free to use the media I purchased as I see fit.

Crockett said...

Can we say this is not the voice of Canada's legal community ... I don't think so ;-)

John said...


I don't understand your comment. I think you're trying to zing me somehow. You must be taking zing-lessons from Darryl.

I find the Canadian Bar Association statement very interesting, and I'll be reading it closely and possibly commenting on it on the blog. It should surprise no-one that that the CBA attempts to survey the many legal opinions on copyright in their submission. A broad, even-handed survey of the ground is the CBA's job.

Actually, it's probably the Canada Research Chair in Internet and E-Commerce Law's job, but I think the country has learned not to look in that direction for even-handed analysis.

Advice for the future -- don't just assume that something appearing on Geist's blog can zing me. Read the thing first.

John said...

Hey look at this from the agreed-upon recommendations in the CBA document:

"Further refinement of the provision including education as a fair dealing exception is required to create certainty and clarity for creators and educational users, and to address internal inconsistencies within the Act."

It almost sounds like the CBA is asking the government to provide clear legislative guidance around the education category. Where have we heard that request before?

Crockett said...

John, it was meant as a little bit of a zing, but an illustrative one.

I have looked at the "collective voice of creation" and while there are some valid points I would not call it even-handed advice either.

Calls coming from a group with vested interests (whichever perspective) by it's very nature will not have even-handedness as it's core characteristic. That's why we need so many different voices on this topic, and creators surely have an important one.

John said...


I don't think creators need to apologize for looking out for their interests in this debate. Expecting otherwise is like asking a union to express management positions at the collective bargaining table.

Crockett said...

I agree John, lets lay all our cards on the table. But lamenting the 'oppositions' lack of even handedness while ignoring your own same deficiency is not productive. I too sometimes find myself falling into that trap, it's a sticky wicket.

Darryl said...

"I don't think creators need to apologize for looking out for their interests in this debate."

Yet, somehow you think users do?

John said...

There's that famous Darryl zing.

No, Darryl, I don't believe users need to apologize. As I have stated many, many, many times, I am a user myself.

On the other hand, those who would counsel willful infringement and/or the removal of established creator rights out of some half-grasped populist theory of free culture? Them? Yes, I think they have a lot to apologize for. Especially when they implicate good-faith consumers in their weird Randian libertarian crusade.

I hope that clears things up.

John said...


I don't expect even-handedness from those I consider my opposition in this debate. Not at all. And I certainly don't lament its lack.

What offends me is the pose of even-handedness and issue agnosticism from those who are in fact completely invested and one-sided. I have never hidden my interest or opinion in this debate. Never. And I am not in an official capacity that requires restraint from creator advocacy.

Darryl said...

"those who would counsel willful infringement and/or the removal of established creator rights out of some half-grasped populist theory of free culture? Them? Yes,"

The debate would be a lot easier if you stopped trying to guess people motives and knowledge level.

It is perfectly reasonable to council for willful infringement when established creator rights are excessive (and growing ever more so). It is also fair to call for the removal of those creator rights so that the users don't have to infringe in the first place.

Given that every right granted to creators is a right taken from users, doing so is not that different from what the 'cultural' industries have been doing for years.

Anonymous said...

Here's what Conservative (and his party's lead on the C32 Cte.) Dean Del Mastro said at a meeting on ACTA yesterday. Does this speak of an ability to achieve balance and to consider the questions around copyright even-handedly:

"I think you need to understand what the complexities in copyright are. There are two main groups that will oppose copyright no matter what. There's group on the left that I call the “sticking-it-to-the-man” group. In other words, they don't want industry to make any money. Whatever you try to do, they might push money into industry where somebody might make money. They don't like.
The other side is the extreme right. They're the libertarian group. They're the “stay-the-hell-out-of-my-life” group. Those are the two groups, right? Most people are somewhere in the middle. If you want to appeal to the voters on either side of that, then you take a position that is inherently opposed to theirs. Most of the interventions I'm hearing at Bill C-32—certainly a lot of them from my colleagues opposite—seem to be appealing to the “sticking-it-to-the-man” group. They're very concerned about the creators. Whenever you talk about trying to re-establish a marketplace or an opportunity for groups to earn money legitimately, that doesn't appeal. What we need instead is a system of levies, taxes and so forth that we can extend through various bodies, because we all know you can't have a marketplace.
I actually think that's unfortunately--Your comments will be interpreted as being against Bill C-32 because you don't believe that Bill C-32 does anything to establish a marketplace. That's unfortunate."

He dpoesn't understand how the many small businesses that creators are work at all.